FILED

United States Court of Appeals

Tenth Circuit

May 12, 2008

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHEM FISCHER,
Plaintiff-Appellant,
v.

No. 06-4121

FORESTWOOD COMPANY, INC., a

Utah corporation,
Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH
(D.C. NO. 2:02-CV-210-DAK)

James W. Stewart (Boyd L. Rogers with him on the briefs) Ballard Spahr
Andrews & Ingersoll, LLP, Salt Lake City, Utah, for Appellant.
Raymond Scott Berry, Salt Lake City, Utah (Rodney R. Parker, Snow,
Christensen & Martineau, Salt Lake City, Utah, with him on the brief) for
Appellee.
Before HARTZ, McCONNELL, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.

Shem Fischer sued Forestwood Company, Inc., under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1) and 2000e-3(a), for unlawful

discharge, retaliation, and failure to hire. He alleged that Forestwood

discriminated against him because he was expelled from the Fundamentalist
Church of Jesus Christ of Latter-Day Saints (FLDS) and because he objected to
the company firing another employee who had also left the church.
The district court granted Forestwood summary judgment on all claims.
We AFFIRM the district courts grant of summary judgment on the claims of
unlawful discharge and retaliation. Finding the district court improperly excluded
certain evidence as inadmissible hearsay, however, we REVERSE the grant of
summary judgment on the failure-to-hire claim and REMAND for further
proceedings.
I. Background
Forestwood is a family-owned business in Hildale, Utah, that manufactures
and installs wooden cabinetry. Fischer worked at Forestwood full-time from 1987
until July 2000. He served many roles during that time; working first as a shopworker, then as an installer, and finally as a salesman. When Fischers tenure
ended, he was the companys top cabinet salesman. While Fischer was employed
by Forestwood, his half-brother, Marvin, managed the company, and his father,
Erwin, served as its president. Another half-brother, David, was also employed
by the company.
Forestwoods management (including Marvin and Erwin) were closely
involved with the FLDS, whose principal congregation was located in Hildale.
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The company had given cash donations to the FLDS in the past. Since at least
1999, the company refused to hire or interview anyone who was not a member of
the FLDS church. At the time Fischer filed his complaint with the EEOC, only
one employeeout of seventy total employeeswas not a member of the church.
From 1991 through 2000, Fischer worked closely with John Musser, who
prepared cabinet patterns for Forestwood. Musser, like Fischer, was a member of
the FLDS church during most of that time. In August or September 1999, Musser
and his wife decided to leave the FLDS and become members of the LDS church.
They moved 24 miles up the road from Hildale to Hurricane because they felt
uncomfortable continuing to live among FLDS members. For the next year,
Musser continued to work for Forestwood because he derived a substantial
portion of his income from this employment.
About the time Musser left the FLDS church, Fischer publicly criticized the
church and began skipping church functions. As a result, his co-workers
sometimes heckled him. Fischer also claimed anonymous notes expressing
concern about his faith were left on his cars windshield and in his message box
at work. He felt increasingly uncomfortable at Forestwood. In the spring of
2000, he was formally expelled from the FLDS church.
On July 16, 2000, Warren Jeffs (counselor, son, and heir to FLDS prophet
and leader Rulon Jeffs) delivered a sermon urging FLDS members to stop
supporting apostates through their business relationships. Jeffs believed funds
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from those relationships were being used to fight the church. He urged members
to [b]e kind to everyone, but leave apostates alone, and called upon the
membership to stop helping our enemies fight against us. R., Vol. I at 11520.
A short time later, Fischer met with his half-brothers Marvin and David.
At that meeting, Marvin informed Fischer that he planned to fire Musser. Fischer
objected to this termination, arguing firing Musser would constitute religious
discrimination and would be over the top of me. Marvin responded by saying
if thats the way its got to be. R., Vol. II at 372. Fischer interpreted Marvins
statement as indicating he was fired. Soon after this exchange, however, Marvin
asked Fischer to reconsider leaving the company. Fischer did not accept this
proposal. Instead, he asked if he could have time to finish up his current projects.
Marvin agreed and Fischer left the company a short time later.
In November 2000, Fischer sought reinstatement with the company. He
approached his father, Erwin, who was president of the company. Fischer
surreptitiously taped two of the conversations. In the first conversation, he
pushed hard for reinstatement, but his father held back, claiming someone else
had already taken over Fischers previous duties. Erwin ended the conversation
by saying he would discuss the issue with the company and others. In the second
conversation, Erwin indicated he wanted Fischer back at the company, but only if
Fischer rejoined the church.

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II. Discussion
Fischer sued Forestwood under Title VII for unlawful discharge, retaliation,
and failure to hire. 1 The district court granted Forestwood summary judgment on
all three claims. In reaching this decision, the court also decided the two
recorded conversations between Fischer and Erwin were inadmissible hearsay.
A. Standard of Review
We review a grant of summary judgment de novo. Piercy v. Maketa, 480
F.3d 1192, 1197 (10th Cir. 2007). Summary judgment is warranted only if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law. Fed. R. Civ. P. 56(c). In conducting our analysis, we view all of the facts
in the light most favorable to the non-movant and draw all reasonable inferences
from the record in the non-movants favor. Young v. Dillon Cos., 468 F.3d 1243,
1249 (10th Cir. 2006).
While we view the record in the light most favorable to the non-moving
party, that party must still identify sufficient evidence requiring submission to the

As a prerequisite to all three Title VII claims, Fischer must show that he
was an employee of Forestwood or was seeking to be rehired as an employee. See
Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069 (10th Cir. 1998). In evaluating
Forestwoods summary judgment motion, the district court assumed, without
deciding, that Fischer was an employee rather than an independent contractor.
We make the same assumption.
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jury to survive summary judgment. Piercy, 480 F.3d at 1197. When a party
relies on affidavit evidence, it may be insufficient to create a triable fact if it is
nonspecific or otherwise non-responsive, vague, conclusory, or self-serving. Id.
at 119798.
B. Unlawful Discharge and Retaliation
Fischer first argues he was fired because he dropped out of the FLDS
church and protested the treatment of his friend, Musser. The district court
concluded Fischer did not produce sufficient evidence demonstrating he was
subjected to an adverse employment action. We agree.
Under Title VII, an employer must not discharge any individual . . .
because of such individuals . . . religion. 42 U.S.C. 2000e-2(a)(1). When the
plaintiff only puts forth circumstantial evidence of discrimination, we evaluate
such claims under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
framework. 2 Stover v. Martinez, 382 F.3d 1064, 1077 (10th Cir. 2004) (citing
Shapolia v. Los Alamos Natl Lab., 992 F.2d 1033, 103738 (10th Cir. 1993)). To

Fischer did not argue to the district court that his claim was supported by
direct evidence of discrimination. Rosewood Servs., Inc. v. Sunflower Diversified
Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005) (holding that arguments not
raised in the district court are waived on appeal). Fischer also did not raise this
issue on appeal. [A]rguments not set forth fully in the opening brief are
waived. Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir.
1998). Therefore, it is unnecessary to reach the question of whether Fischer could
instead proceed under a mixed motive framework. See Fye v. Oklahoma Corp.
Commn, 516 F.3d 1217, 122627 (10th Cir. 2008) (describing the mixed motive
framework).
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establish a prima facie unlawful discharge case, the plaintiff must show the
following:
(1) that he was subjected to some adverse employment action;
(2) that, at the time the employment action was taken, the employees
job performance was satisfactory; and
(3) some additional evidence to support the inference that the
employment actions were taken because of a discriminatory motive
based upon the employees failure to hold or follow his or her
employers religious beliefs.
Shapolia, 992 F.2d at 1038 (internal citations omitted and emphasis added).
Once the plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate nondiscriminatory reason for its decision to
discharge the plaintiff. If the defendant meets its burden of production by
offering a legitimate rationale in support of its employment decision, the burden
shifts back again to the plaintiff to show that the defendants proffered reasons
were a pretext for discrimination. Exum v. United States Olympics Comm., 389
F.3d 1130, 113435 (10th Cir. 2004).
Fischer also alleges Forestwood retaliated against him because he objected
to the company firing Musser. 3 In particular, Fischer told Marvin that the
3

As a prerequisite to a establishing a retaliation claim, Fischer must prove

that he reasonably believed that by firing Musser, Forestwood would be violating
Title VII. Bd. of County Commrs, Fremont County v. EEOC, 405 F.3d 840, 852
(10th Cir. 2005) (Title VII permits employees to maintain retaliation claims
based on a reasonable good-faith belief that the underlying conduct violated Title
VII.). In particular, Fischer must show he had a good faith belief that Musser
was an employee (not an independent contractor) of Forestwood. The district
court assumed for the purposes of evaluating the summary judgment motion that
(continued...)
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termination of Musser was unlawful because it was based solely on the fact that
Musser was no longer a member of the FLDS church. Title VII forbids retaliation
against an employee because he opposed any practice made unlawful by Title
VII, or because he participated . . . in an investigation, proceeding, or hearing
under this subchapter. 42 U.S.C. 2000e-3(a).
Without direct evidence of discrimination, 4 we analyze retaliation claims
under the McDonnell Douglas framework. Stover, 382 F.3d at 1070. To establish
a prima facie case of retaliation, Fischer must show (1) he engaged in protected
opposition to discrimination; (2) Forestwood took an adverse employment action
against him; and (3) a causal connection exists between the protected activity and
the adverse action. Id. at 1071. As in an unlawful discharge claim, once the
plaintiff establishes a prima facie case, the burden shifts to the defendant to
produce evidence of a non-discriminatory reason for the conduct, and then the
plaintiff has the burden of demonstrating pretext.
In sum, to establish a prima facie case on both the unlawful discharge and
retaliations claims, Fischer must prove that the company subjected him to an
adverse employment action. An adverse employment action must be materially
3

(...continued)
Musser was an employee. We likewise make the same assumption.
4

Fischer never argues before the district court or on appeal that he

produced direct evidence of discrimination. Because Fischer waived the issue, it
is unnecessary to determine whether Fischer instead could have pursued his claim
under the mixed motive framework. See supra note 2.
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adverse to the employees job status. Duncan v. Manager, Dept of Safety,

Denver, 397 F.3d 1300, 1314 (10th Cir. 2005). Proof of either actual or
constructive discharge satisfies this requirement. Chertkova v. Connecticut Gen.
Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); Rennard v. Woodworkers Supply,
Inc., 101 F. Appx 296, 30809 (10th Cir. 2004).
1. Actual discharge
An actual discharge . . . occurs when the employer uses language or
engages in conduct that would logically lead a prudent person to believe his
tenure has been terminated. Chertkova, 92 F.3d at 88; see also Pennypower
Shopping News, Inc. v. NLRB, 726 F.2d 626, 629 (10th Cir. 1984) (The test of
whether an employee has been discharged depends on the reasonable inferences
that the employee could draw from the statements or conduct of the employer.).
An actual discharge does not occur, however, when the employee chooses to
resign rather than work under undesirable conditions. See, e.g., Robinette v. Natl
Credit Servs. Corp., 182 F. Supp. 2d 1055, 1059 (D. Kan. 2001) (holding
employee was not actually discharged when she resigned after being demoted).
As evidence of actual discharge, Fischer cites the following testimony from
his deposition:
I saidMarvin made the statement thathe says, you know, we need
to release John Musser, and I says if you release John Musser it will
be over the top of me. And Marvin paused for about five, maybe ten
seconds and just kind of looked at me and he says, okay, if thats the
way its got to be. Then he paused for about three seconds. I was
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shocked that Id just been fired for opposing the release of a fellow
worker, someone that did a lot of work for me, over religious beliefs.
And in my mind I just clearly had been fired. He said, okay, if thats
the way its got to be.
R., Vol. II at 371. Marvin then urged him to reconsider. Fischer refused to
change his mind, but requested eight weeks to wrap up my business here. Id. at
372. Marvin granted him this request.
This testimony does not support Fischers claim that he was actually
discharged. The record discloses the following facts. (1) Marvin told Fischer
that Musser was to be released. (2) Fischer disagreed with the decision and told
Marvin that it would not be acceptable. (3) Marvin never told him he was
discharged for this stance, only that Marvin would not change his position about
Musser. (4) Marvin, moreover, plainly told Fischer he had the option of
remaining with the company. (5) Fischer nonetheless chose not to remain with
Forestwood because he disapproved of the companys decision to release Musser.
(6) Finally, Fischer submitted a complaint to the EEOC where he noted he was
forced to quit by the company, not that he was fired. R., Vol. I at 128.
In sum, because Fischer chose to resign rather than work for a company he
believed had wronged Musser, we agree with the district court that he was not
actually discharged.

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2. Constructive discharge
Even if an employee resigns, the plaintiff may still satisfy the adverse
employment action requirement by demonstrating that he was constructively
discharged. The plaintiffs burden in establishing constructive discharge is
substantial. EEOC v. PVNF, LLC, 487 F.3d 790, 805 (10th Cir. 2007); see also
Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (explaining
[t]he bar is quite high in [constructive discharge] cases). A constructive
discharge occurs only when an employer, through unlawful acts, makes working
conditions so intolerable that a reasonable person in the employees position
would feel forced to resign. Exum, 389 F.3d at 1135. We evaluate the
voluntariness of an employees resignation under an objective, totality of the
circumstances standard. Id. at 1136.
Several cases show the type of evidence plaintiffs must produce to meet
their burden. For example, in Acrey v. American Sheep Industry Assn, 981 F.2d
1569, 1574 (10th Cir. 1992), we concluded a plaintiff alleging discrimination
under the Age Discrimination in Employment Act produced sufficient evidence
establishing she was constructively discharged. On multiple occasions, her
supervisor asked her to quit, citing her age and her image. Furthermore, her
supervisor repeatedly confronted her with a litany of performance shortcomings.
The supervisor took away longstanding job responsibilities and gave the employee
inadequate information and training to perform her new responsibilities. The
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plaintiff, too tired to fight, finally resigned. Id. Because the supervisor made it
nearly impossible for the plaintiff to continue performing her job, we concluded
she was constructively discharged.
But an employee cannot survive summary judgment merely by producing
evidence showing that working conditions were difficult or unpleasant. Exum,
389 F.3d at 1135. For example, in PVNF, 487 F.3d at 794, the EEOC produced
evidence demonstrating that the defendant repeatedly subjected female employees
to sexually explicit and derogatory remarks. Even so, we concluded the EEOC
failed to produce sufficient evidence demonstrating working conditions were so
intolerable that a female employee who quit was constructively discharged. Id. at
806.
Likewise, in Daemi v. Churchs Fried Chicken, Inc., 931 F.2d 1379 (10th
Cir. 1991), an Iranian supervisor sued his employer under Title VII for
constructive discharge. The plaintiff produced evidence showing that he resigned
because his employer (1) made derogatory remarks about the fact that he was
Iranian, (2) ordered him to take a polygraph examination because of his national
origin, (3) belittled and mistreated him at company seminars, and (4) ordered him
to fire or eliminate other Iranians employed by the company. Id. at 1384.
Despite this harassment, we concluded these conditions did not make the
workplace sufficiently intolerable that the plaintiff was constructively discharged.
Id. at 1386.
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Even some evidence of discriminatory animus in the workplace will not

necessarily establish a constructive discharge claim. See Penn. State Police v.
Suders, 542 U.S. 129, 147 (2004) (A hostile-environment constructive discharge
claim entails something more [than conduct that amounts to actionable
harassment]); Bennett v. Quark, Inc., 258 F.3d 1220, 1229 (10th Cir. 2001),
overruled on other grounds by Boyer v. Cordant Technologies, Inc., 316 F.3d
1137, 1140 (10th Cir. 2003) ([A] finding of constructive discharge may not be
based solely on a discriminatory act; there must also be aggravating factors that
make staying on the job intolerable.) (internal quotation marks omitted); 1-15
Larson on Employment Discrimination 15.08 (2007) (The mere existence of
discrimination will not normally constitute the kind of intolerable conditions that
would make a reasonable person feel compelled to quit.).
Applying these principles here, Fischer failed to produce sufficient
evidence demonstrating his working conditions were so intolerable that he was
forced to quit. Fischer alleges he was heckled at work, describing it in the
following manner:
Lehi [a co-worker] would always meet me in the office. If I wasnt
to a prayer meeting or I wasnt to a Saturday project, then Lehi
would say, where were you? Why werent you, you know, to this
function or why werent you, you know, to the churchs prayer
meeting this morning, or why werent you on their work project.
R., Vol. II at 364. Although such heckling might make the workplace unpleasant,
this harassment was no more severe than what the employees in PVNF and Daemi
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experienced. Fischer also alleges that co-workers occasionally left anonymous

messages on his cars windshield and in his schedule pickup box. Fischer
described the messages in the following manner:
It would beit would say something like, you knowusually it
would start out I am concerned. Im concerned that, you know,
youre not following, you know, the mandates of our prophet. Thats
how it usually started out, you know, then it would usually go into be
faithful to your prophet, follow the whisperings of the spirit and let
the spiritit was religiously based, very religious overtones.
Id. at 368. Although such harassment may make the workplace difficult, the
notes were not so distracting that a reasonable person could no longer perform his
job. In fact, when Fischer told two supervisors about the notes, he did not ask
them to take disciplinary action against the person. Nor did he even ask his
supervisors to order the perpetrator to stop. Fischer merely asked the supervisors
if they knew who was writing the notes. The fact that Fischer asked to rejoin the
company after these incidents further undermines his contention that this alleged
harassment was intolerable.
Finally, Fischer alleges that the company (1) refused to hire or interview
anyone for employment who is not a member of the FLDS church, and (2) fired
Musser because he was not such a member. Evidence that Forestwood engaged in
discriminatory acts against other employees or potential employees, however, is
not enough to prove constructive discharge. See PVNF, 487 F.3d at 80506;
Daemi, 931 F.2d at 138586. A protest resignation, without more, does not

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establish constructive discharge. Furthermore, unlike in Acrey, Fischer did not

produce evidence that his supervisors encouraged him to quit or actively
undermined his ability to perform his job. In fact, his supervisor asked him to
reconsider his decision to leave the company. See Exum, 389 F.3d at 1136
(explaining that the fact the employer urged the plaintiff to reconsider his
resignation supports the inference that he was not forced to resign); 1-15 Larson
on Employment Discrimination 15.08 (If the employer in fact requested that
the employee not quit, this will be helpful to the defense, but is not conclusive.).
***
In sum, the district court properly granted Forestwood summary judgment
on Fischers unlawful discharge and retaliation claims because he failed to
produce sufficient evidence of actual or constructive discharge.
C. Failure to Hire
Fischer also alleges Forestwood failed to rehire him because he would not
rejoin the FLDS church. Under Title VII, it is unlawful to fail or refuse to hire
. . . any individual . . . because of such individuals . . . religion. 42 U.S.C.
2000e-2(a)(1). A plaintiff may survive summary judgment by producing either
direct or circumstantial evidence of discrimination.
If the plaintiff only produces circumstantial evidence, it is evaluated under
the McDonnell Douglas burden-shifting framework. In an ordinary failure-to-hire

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case based on race or sex discrimination, a plaintiff must show the following to
establish a prima facie case:
(1) plaintiff belongs to a protected class; (2) plaintiff applied and was
qualified for a job for which the employer was seeking applicants; (3)
despite being qualified, the plaintiff was rejected; and (4) after plaintiffs
rejection, the position remained open and the employer continued to seek
applicants from persons of [plaintiffs] qualifications.
Garrison v. Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005). An employer can
rebut the prima facie case by satisfying the familiar McDonnell Douglas burdenshifting framework. In the context of a claim of religious discrimination, we
apply a modified version of McDonnell Douglas. See Shapolia, 992 F.2d at 1038
(applying a modified McDonnell Douglas test to a plaintiffs claim that he was
unlawfully discharged because he did not share his supervisors Mormon
beliefs). 5
To establish a prima facie failure-to-hire case in this context, the plaintiff
must show the following: (1) the plaintiff applied and was qualified for a job for
which the employer was seeking applicants; (2) despite being qualified, the
plaintiff was rejected; and (3) some additional evidence to support the inference
that the plaintiff was not hired because of a discriminatory motive based upon the
5

The present case is similar to Shapolia, 992 F.2d at 1038. First, Fischer
alleges he was discriminated against because he did not share his supervisors
religious beliefs. Second, because the discrimination is targeted against nonFLDS members, and non-FLDS members constitute a majority of society, this
case resembles reverse discrimination cases. Therefore, for the same reasons we
applied a modified McDonnell Douglas framework in Shapolia, we must do so
here.
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employees failure to hold or follow his or her employers religious beliefs. Upon
such a showing, the plaintiff is entitled to the benefit of the McDonnell Douglas
burden-shifting scheme and its presumptions. Exum, 389 F.3d at 113435.
Alternatively, a plaintiff alleging a failure-to-hire claim may survive
summary judgment if he produces sufficient direct evidence of discrimination.
Direct evidence would support an inference that religious discrimination
played a motivating factor in an employers decision not to hire the applicant. Cf.
Fye v. Oklahoma Corp. Commn, 516 F.3d 1217, 1226 (10th Cir. 2008)
(describing direct evidence in the context of a Title VII retaliation claim). When
direct evidence is presented, McDonnell Douglass burden-shifting scheme is
inapplicable. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).
In such a case, we ask only whether the plaintiffs direct evidence is sufficient to
create a genuine issue of material fact to defeat summary judgment.
In support of his failure-to-hire claim, Fischer proffered evidence of two
tape-recorded conversations between himself and Erwin. 6 Erwin is Fischers
father and, at the time, was also the President and Chairman of the Board of

Recording telephone calls is legal in Utah with the consent of at least one
party to the conversation. Utah Code Ann. 77-23a-4(7)(b) (A person not
acting under color of law may intercept a wire, electronic, or oral communication
if that person is a party to the communication or one of the parties to the
communication has given prior consent to the interception, unless the
communication is intercepted for the purpose of committing any criminal or
tortious act in violation of state or federal laws.).
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Forestwood. Fischer alleges these recordings reveal that Forestwood would only
rehire him if he returned to the FLDS church.
The district court refused to consider these recordings on summary
judgment, concluding that the conversations were impermissible hearsay. The
district court furthermore concluded that even if the conversations were
admissible, they were insufficient to establish a prima facie case. We disagree
with both conclusions.
1. Admissibility of telephone conversations
[W]e review a district courts evidentiary decisions for abuse of
discretion. Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1081
(10th Cir. 2006). In reviewing [such a decision], we will not disturb the
determination absent a distinct showing it was based on a clearly erroneous
finding of fact or an erroneous conclusion of law or manifests a clear error of
judgment. Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th Cir. 2007).
Hearsay evidence is generally inadmissible. Fed. R. Evid. 802. Such
evidence is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Fed. R. Evid. 801(c). A statement is not hearsay, however, if it is an admission of
a party-opponent. Fed. R. Evid. 801(d)(2). An admission of a party-opponent is,
among other things, a statement offered against a party and is . . . (C) a
statement by a person authorized by the party to make a statement concerning the
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subject, or (D) a statement by the partys agent or servant concerning a matter

within the scope of the agency or employment, made during the existence of the
relationship. Id.
The taped conversations constitute admissions of a party-opponent because
Erwin was president of Forestwood at the time of the conversations. As
president, he was authorized by Forestwood to make a statement concerning
hiring and firing. See Fed. R. Evid. 801(d)(2)(C). Likewise, he was acting as an
agent for Forestwood and was making statements within the scope of his
authority. See Fed. R. Evid. 801(d)(2)(D).
The district court nonetheless concluded that the statements were
inadmissible hearsay. The court cited two reasons: First, the conversations were
between a father and a son. Second, Forestwood does not have an opportunity to
cross-examine Erwin because he is deceased. 7
As to the first explanation, the district court implied that the statements
were not admissions of a party opponent because Erwin was speaking in his
capacity as a father rather than as the president of Forestwood. Such a
conclusion, however, is erroneous. Substantial portions of the taped
conversations involved Erwin discussing whether Fischer would be rehired by the
company.
7

The district court also notes that the tape is, in certain places, not
audible. R., Vol. IV at 854. The district court does not explain why this fact
would make the entire tape inadmissible hearsay.
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Forestwood nonetheless argues, [u]nless in fairness the transcripts could

only be characterized as a conversation between parties . . . the district court
was within its discretion in holding that they are inadmissible hearsay. Aple. Br.
at 26 (emphasis added). Forestwood offers no legal support for such a claim.
Nothing in the rules of evidence excludes otherwise admissible evidence because
of a familial relationship, especially in the context of a family-owned business.
Likewise, Title VII contains no exception for family-owned businesses or intrafamily disputes.
As to the second point, courts have consistently rejected the argument that
for an admission by a party opponent to be admissible, the declarant must be
available for cross-examination. See, e.g., Savarese v. Agriss, 883 F.2d 1194,
1201 (3d Cir. 1989) ([A] statement by a declarant, deceased at the time of trial,
may be admissible under . . . Fed. R. Evid. 801(d)(2)(D).); Auto-Owners Ins. Co.
v. Jensen, 667 F.2d 714, 722 (8th Cir. 1981) (explaining that admissions by a
party opponent do not need to be subjected to cross-examination in order to be
admissible). The reason cross-examination is not required is because
admissions doctrine amounts to a logical expression of the
philosophy of the adversary system and is closely connected with the
personal freedom and responsibility that are part of life in a free
society: In the case of individual admissions, it seems appropriate to
point out that parties bear the lions share of responsibility for
making or breaking their own cases, and lawsuits are focused
inquiries into personal rights and social responsibilities. These ideas
make it reasonable to say that one cannot claim that his own

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statement should be excluded because it was not made under oath or

subject to cross-examination or in view of the trier of fact.
4 Mueller & Kirkpatrick, Federal Evidence 8:44 (3d ed. 2007) (internal
citations omitted); see also Fed. R. Evid. 801 advisory committees note
(Admissions by a party-opponent are excluded from the category of hearsay on
the theory that their admissibility in evidence is the result of the adversary
system. . . . No guarantee of trustworthiness is required in the case of an
admission.).
Accordingly, the district court should have considered the tape-recorded
conversations between Fischer and his father in determining whether sufficient
evidence was presented to survive summary judgment on the failure-to-hire claim.
2. Sufficiency of evidence
The district court concluded that even if the recorded tapes were admitted
into evidence, Fischer presented insufficient evidence to survive summary
judgment. Again, we disagree.
As an initial manner, the district court erred in concluding that Fischer
failed to establish a prima facie failuretohire case. As explained above, to
establish a prima facie case, Fischer must provide sufficient evidence establishing
that (1) he applied and was qualified for a job for which Forestwood was seeking
applicants; (2) despite being qualified, Forestwood rejected him; and (3) some
additional evidence to support the inference that Fischer was not hired because of

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a discriminatory motive based upon Fischers failure to follow the religious

beliefs of Forestwoods management.
Fischer satisfied the first element because he sought reinstatement directly
from Erwin, the president of the company. Fischer is not barred from pursuing
his claim merely because he did not submit a formal application. See Intl Bhd. of
Teamsters v. United States, 431 U.S. 324, 36566 (1977) (When a persons
desire for a job is not translated into a formal application solely because of his
unwillingness to engage in a futile gesture he is as much a victim of
discrimination as is he who goes through the motions of submitting an
application.). In fact, it is unclear from the record whether Forestwood even
accepts formal job applications from non-FLDS members. Fischer also produced
sufficient evidence demonstrating he was qualified for a position, based on his
prior successful performance with the company. Finally, Fischer demonstrated
that a position was available at the company, based on Erwins repeated
statements that the company would be happy to have Fischer return.
It is also undisputed that Fischer satisfied the second element of a prima
facie case because the company did not rehire him. Finally, he established the
third element of a prima facie case. Fischer testified Erwin was aware that he was
not a member of the FLDS church. Furthermore, since at least 1999, the company
has failed to hire or interview anyone who was not a member of the FLDS church.
The district court therefore erroneously concluded that Fischer failed to establish
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a prima facie case at the summary judgment stage. Because the district court
concluded Fischer did not establish a prima facie case, it did not evaluate whether
Forestwood satisfied its burden of articulating a legitimate rationale in support of
its employment decision or whether Fischer demonstrated that the defendants
proffered reasons were a pretext for discrimination. It is unnecessary for us to
reach these issues, however, because we conclude Fischer produced sufficient
direct evidence to survive summary judgment.
In evaluating direct evidence, we do not apply the McDonnell Douglas
framework. See Trans World Airlines, 469 U.S. at 121 (holding McDonnell
Douglas is inapplicable when direct evidence is presented). The recordings are
direct evidence because no inference is required to reach the conclusion
assertedthat Fischers non-membership in the FLDS church played a motivating
factor in Forestwoods decision not to rehire Fischer. Cf. Fye, 516 F.3d at 1226
(describing direct evidence in the context of a Title VII retaliation claim). In the
phone conversation, when Fischer asked Erwin whether he had a chance to check
with other board members about Fischer returning to the company, Erwin said,
[Erwin]: Yeah, Ive had a chance to talk it around a little bit, see whats
going One of the first questions I had was it just for a job or would
you like to come back and be part of the people in the group, trying to
kind of get back in where we were before or just what is your standing
on it, or whats your thinking on it? . . . .
[Erwin]: Drop this suit and let us get back on base and we could go
forward again.

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Mr. Fischer: Uh-huh.

[Erwin]: We would just be (inaudible) happy to have you here back
with us again.
Mr. Fischer: Yeah, But you dont think we could do it just to provide
a good honest job and provide those services unless we had the other
religion hands on tight or
[Erwin]: Right. We would like to have everyone supporting the force,
you know, be one with the prophet. You know how that was.
R., Vol. IV at 63738. Later in the conversation, after much discussion of
the present lawsuit and the FLDS religion, Fischer again asked whether he
could have his job back. Erwin again indicated he would not be rehired
unless he rejoined the FLDS church:
Mr. Fischer: Well, do you think theres some chance, though that we
could start at least entertaining our relationship here on a business
front?
[Erwin]: Its going to have an answer versus where you stand. If
youre suing and fighting Uncle Rulen [sic] and wanting to work for
his company at the same time, this wont work. . . .
[Erwin]: (Inaudible) Dont let things like that upset you and, you
know, you can still come back, you can still turn your life around
right now, you havent lost your career. You can get yourself back
into the priesthood.
Id. at 662, 667. We conclude that these recordings constitute direct evidence that
creates a genuine issue of material fact on the question of whether Forestwood
refused to rehire Fischer because he is not a member of the FLDS church.
***

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Taken together, we conclude the district court erred in excluding the taped
conversations and deciding Fischer lacked sufficient evidence to survive summary
judgment on the failure-to-hire claim. On remand, the district court must still
determine whether Fischer was seeking to be rehired as an employee of
Forestwood for the purposes of Title VII. See supra note 1.
III. Conclusion
We AFFIRM the district courts grant of summary judgment on the
unlawful discharge and retaliation claims, and REVERSE and REMAND on the
failure-to-hire claim.

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